Marriage for Same-Sex Couples in California
Frequently Asked Questions
This information was compiled by Lambda Legal, the National Center for Lesbian Rights, Equality California, Basic Rights Oregon and other organizations working to secure marriage rights for all committed couples. This information is provided as a public service only. It is not a substitute for consultation with an attorney.
Can same-sex couples marry
in California?
Yes. On May 15, 2008, the California Supreme Court ruled that barring
same-sex couples from marriage is unconstitutional. Beginning June 17,
same-sex couples will be able to marry in California.
Will Oregon recognize a
California Marriage?
Because of a 2004 ballot measure that ameded discrimination into the
Oregon Consititution, gays and lesbians are excluded from marriage
under Oregon law. Basic Rights Oregon is working to overturn Measure 36
and ensure equal protection under the law for all Oregonians.
Will getting married in
California have any effect on my Oregon domestic partnership?
As long as your marriage and your domestic partnership are with the
same person, you should be fine.
Can the court’s decision be
appealed to the U.S. Supreme Court?
No. The decision was based on the California Constitution, and the
California Supreme Court has the final say in cases brought under the
California Constitution.
Does the court’s decision
affect the rights of heterosexual couples?
No. The rights of heterosexual couples to marry and the rights and
responsibilities of those who are married remain exactly the same. The
decision simply enables same-sex couples to marry.
Does this ruling require
religious groups or clergy members to marry same-sex couples?
No. The court’s decision said the government may not discriminate
against same-sex couples by barring them from civil marriage – a legal
institution established and regulated by the government. Religious
groups and clergy members remain free to recognize or refuse to
recognize marriages within their religion as each sees fit. While some
faiths do not permit same-sex couples to marry within that faith, a
growing number do. As a result of the court’s decisions, same-sex
couples may choose to be married by a clergy person in a welcoming
community of faith or by a civil servant such as a judge or authorized
deputy.
For same-sex couples in
binational relationships, will getting married in California permit a
non-U.S. citizen to gain legal permanent residence in the U.S.?
No. Immigration is governed exclusively by federal law, which currently
discriminates against married same-sex couples by refusing to recognize
their marriages for purposes of any federal rights or benefits. A
heterosexual person who marries a non-U.S. citizen can petition to have
his or her spouse become a permanent legal resident; however, current
federal law does not provide the same right to a lesbian, gay, or
bisexual person who is married to a same-sex spouse from another
country. Same-sex couples in binational relationships should consult an
immigration attorney before getting married in California or another
jurisdiction.
In 2004, many couples were
married in San Francisco, and the California
Supreme Court subsequently held that those marriages were invalid. Does
the court’s new decision mean that those marriages will now be legally
recognized?
No. Those marriages remain invalid, and those couples would have to
remarry.
If my partner and I were
legally married in Massachusetts or Canada, will our marriage now be
recognized in California?
Yes. When the court’s ruling goes into effect, couples who
legally married in another jurisdiction will be recognized as married
in California as well.
Should we get married now?
Marriage is a serious legal and personal commitment that should not be
entered into lightly. Before getting married, couples should educate
themselves about the legal consequences of marriage, in addition to
other considerations.
Same-sex couples also face some additional considerations that
heterosexual couples do not face, due to discrimination by the federal
government as well as by a number of states. Deciding whether to marry
is an important decision for everyone, gay or straight, but lesbian and
gay couples have to be prepared for and be willing to take on those
additional challenges.
A period of legal uncertainty is likely. For example, if you marry in
California, you cannot be certain whether your marriage will be
respected if you live in, travel to, or move to a state that has laws
or constitutional amendments limiting marriage to heterosexual couples.
In addition, current federal law prohibits the federal government from
recognizing marriages of same-sex couples for purposes of the many
federal rights and benefits given to married heterosexual couples, such
as the right to file joint federal income taxes and the right to social
security benefits as a surviving spouse. Being excluded from these
federal protections, and often state protections as well, is a serious
hardship and can cause significant legal problems.
Important Note: Binational couples in which one
member does not have permanent legal resident status in this country
and anyone serving in the U.S. military should consult with an attorney
with expertise in these areas of law before getting married.
If we’re already in a
registered domestic partnership in California, do we have to dissolve
our domestic partnership before we can marry?
No. The California domestic partnership statutes permit an individual
to be both married and in a registered domestic partnership, so long as
it is to the same person.
Can out-of-state couples
marry in California?
Yes. There is no residency requirement to marry in California.
If my partner and I are from
another state and marry in California, will our marriage be valid in
our home state?
If you live in another state and get married in California, you will be
legally married. However, depending on where you live, your home state
may not respect your marriage. Many states have passed discriminatory
marriage laws, and in those states, state and local governments likely
will not respect your California marriage. But even in those states, it
is highly likely that at least some private businesses and other
private third parties will respect your marriage – particularly those
that already recognize same-sex couples through domestic partnership or
a similar system.
Marriage is a serious legal decision, and same-sex couples face
additional challenges and questions because of continuing
discrimination against married same-sex couples by the federal
government and many states. We urge couples who are considering getting
married in California to proceed with caution. Before getting married
in California, you should educate yourselves about the law in your
state and, if possible, consult an attorney about the best way to
protect your relationship based on your circumstances.
Will the federal government
recognize marriages of same-sex couples who marry in California?
No. Under current federal law, the federal government does not
recognize marriages of same-sex couples. This means that married
same-sex couples currently do not have any of the rights, benefits, or
protections that federal law gives to married heterosexual couples,
such as the ability to file joint federal income taxes or receive
federal spousal benefits through social security or other federal
programs.
Can we file lawsuits if our
marriages are not respected in other states or by the federal
government?
If you feel you have been discriminated against, please contact one of
the LGBT legal organizations listed on this document. We can help you
figure out what options you have to protect your rights. Some types of
unfair treatment can be the basis of a lawsuit, and other times the
unfairness may not be suitable for a court to address. Even when
litigation is an option, it is not the only option. It is always
necessary to weigh the chances of success or failure because bad
results in lawsuits can cause set backs and hurt our entire community.
We want to increase the chances of winning overall, so it is critical
that we work together to have a carefully planned strategy. Together,
we can win!
What do we have to do to
marry in California?
First you need to get a marriage license from the office of the
Registrar-Recorder/County Clerk of any California county. You can get a
license application from most counties’ websites and complete it in
advance, or complete it in the county clerk’s office. Both of you must
go together to the county office and present a government-issued
picture ID and proof that you are over 18 years old. (If either or both
is younger than 18, different procedures apply.) You’ll need to pay the
license fee, which varies by county but generally is less than $100.
The license will be valid for 90 days and your marriage can be
performed anywhere in California. Neither a blood test nor a health
certificate is required. Call ahead or visit the county’s website to
learn the hours and locations of the county offices that issue licenses.
Who can marry us?
In California, clergy members, active and retired judges and court
commissioners, and the
Commissioner and Deputy Commissioners of Civil Marriages are authorized
to perform legal marriages. The Commissioner and Deputy Commissioners
of Civil Marriages perform marriage ceremonies by appointment at
designated county offices. There is a fee, which generally is less than
$50. Call ahead or visit the county website for more information.
Any couple wishing to marry can also have a friend deputized to perform
their marriage ceremony through a county “Deputy Commissioner for a
Day” program. If you choose this option, you will need at least two
months advance notice and the person to be deputized to perform your
ceremony will have to pay a fee and visit the county office in person
to be sworn in. Visit the county website to see if your county has this
program. If it does not, check whether a nearby county will deputize an
out-of-county resident.
The person who performs your ceremony must complete and sign your
marriage license after the ceremony. In addition, at least one witness
18 years old or older must sign the marriage license.
The license then becomes your marriage certificate, which has to be
returned promptly to the county for filing.
What happens if we marry in
California and then wish to divorce?
The only legal way to end a marriage is to get a divorce. In order to
divorce in California, at least one of the parties to the marriage must
be a resident of California for at least six months and of the county
in which the divorce is filed for three months before filing a divorce
petition. If you move from California to another state, or if you
already live in another state, getting a divorce could be difficult.
Currently, the only state other than California in which same-sex
married couples have a clearly established right to divorce is
Massachusetts; however, Massachusetts has a one-year residency
requirement before a person can petition a Massachusetts court for a
divorce. New York law appears to respect same-sex couples’ out-of-state
marriages even though same-sex couples cannot yet marry in that state.
So, married gay and lesbian couples should be able to petition for
divorce in New York; however, New York also has a residency requirement
for divorce. States with civil unions or comprehensive domestic
partnerships, like Connecticut, New Hampshire, New Jersey, Oregon, and
Vermont, also may allow married same-sex couples to divorce, but each
of those states has a one-year residency requirement. That means that
at least one spouse must be a resident of the state for a year prior to
the divorce.
Couples who are unable to obtain a divorce remain legally married.
Therefore, being unable to divorce may cause serious legal problems and
complications for same-sex couples who find themselves in this
situation.
Could right-wing forces take
away the freedom to marry at the ballot box in California?
Yes. Because the court based its decision on rights guaranteed by the
California Constitution, right-wing groups are trying to amend our
state Constitution to eliminate these fundamental constitutional
protections and take away the basis for the decision.
These groups, which have received significant funding from out-of-state
right-wing organizations, are placing an initiative on the November
2008 ballot that will ask voters to amend the California Constitution
to reverse the court’s decision and deny gay and lesbian couples the
freedom to marry.
Already, many state leaders are expressing their opposition to this
proposed constitutional amendment. For example, in a public statement
on April 11, 2008, Governor Schwarzenegger stated that an initiative to
amend the California Constitution to ban gay and lesbian couples from
marriage was “a waste of time,” adding “I will always be there to fight
against that. It will never happen.”
We agree with Governor Schwarzenegger that these outsiders are wasting
their time and money trying to turn California into a state that would
use its Constitution to take away civil rights and hurt families. But
it will take every one of us to stop this antifamily initiative. For
more information about how to get involved, contact Equality For All at
www.EqualityForAll.com.
What can we do to help
preserve the freedom to marry we have just won?
We urge you to get involved today! For more information about how you
can help, please contact Equality For All at www.EqualityForAll.com.
Now that we have won this victory, all residents of California are
better off, because strengthening any group of families makes stronger
communities for everyone. All people who value families and fairness
have a stake in preserving the freedom to marry for lesbian and gay
couples. We cannot afford to wait, please act now. |
